Defendant's conviction under California's criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite crime, disturb the public peace, or threaten the overthrow of government by unlawful means.

Anita Whitney, a member of a distinguished California family, was convicted under the state's 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party of America, a group the state charged was devoted to teaching the violent overthrow of government. Whitney claimed that it had not been her intention, nor that of other organizers, that the party become an instrument of violence.

The question before the court was whether the 1919 Criminal Syndicalism Act of California violated the Fourteenth Amendment’s “due process” and “equal protection” clauses. The Court, by a 9-0 vote, held that it did not and upheld Whitney's conviction. Justice Sanford wrote for the seven-justice majority opinion, and invoked the Holmes test of "clear and present danger" but went further. The Court held that the state in exercise of its police power has the power to punish those who abuse their rights to freedom of speech "by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." In other words, if words have a "bad tendency" they can be punished.

The Whitney case is most noted for Justice Louis Brandeis's concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.[1] Justice Brandeis and Justice Holmes concurred in the result because of the Fourteenth Amendment questions, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority and supported the First Amendment.

Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the "marketplace of ideas." But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not only an abstract virtue, but a key element that lies at the heart of a democratic society.

Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a "time to answer" test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.

"[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature." Justice Louis Brandeis in the Whitney opinion.[2]

"Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement..."